Breakthrough in EU bid to join Council of Europe

Negotiators from the European Union and the Council of Europe have finalised a draft agreement that, if approved, would lead to the EU joining the European Convention on Human Rights.

Many hurdles remain, however. The EU Court of Justice in Luxembourg will now be asked to give its opinion on the text. The text would then require the unanimous approval of the EU’s member states, the support of the European Parliament (with a two-thirds majority), and would then need to be ratified by parliaments in the Council of Europe’s 47 member states.

All 27 of the EU’s member states are already signatories of the convention. However, laws and actions taken by the EU as a bloc or by EU officials are currently not subject to the scrutiny entailed by acceptance of the convention. The draft agreement would change that, and would mean that legal cases about human-rights questions involving the EU would be resolved by the European Court of Human Rights, a Council of Europe body.

The EU’s Lisbon treaty, which came into force in 2009, obliges the EU to sign the convention. Official talks began in July 2010 and were slowed down by objections principally from France and the UK, on the EU side. Objections were also raised by several Council of Europe members that are not members of the EU, including Switzerland and Russia.

France opposed subjecting the EU’s common foreign and security policy to the convention and wanted clarity over the interaction between the European Court of Justice, the EU’s top court, and the European Court of Human Rights. The UK’s objections to the convention were linked to its desire to reform the European Court of Human Rights, aimed particularly at reducing the number of cases referred to the court.

The UK’s pressure for reform of the court has also been stoked by opposition on the political right to a number of the court’s rulings, including one that prevented the UK from imposing a blanket ban on voting rights for prisoners.

Today’s agreement by negotiators is on legal matters, but France’s and the UK’s objections could re-surface in the political debate between the EU’s member states. Acceptance by the UK may prove particularly tricky, as Prime Minister David Cameron may find it difficult to persuade his centre-right supporters to accept a transfer of legal powers to a European court.

Another issue that proved problematic was in talks related to the process of selecting judges at the European Court of Human Rights. One judge will represent the EU, but he or she would need the backing of the Parliamentary Assembly of the Council of Europe, which is made up of elected politicians from Council of Europe’s 47 member states. An agreement was reached in 2011 that would give 18 members of the European Parliament seats in the Parliamentary Assembly of the Council of Europe and therefore votes on the selection of the EU judge.

European Charter of Fundamental Rights

The European Convention on Human Rights and the European Court of Human Rights were both created by the Council of Europe.

The convention is therefore distinct from the European Charter of Fundamental Rights, which was drawn up by the EU in 2000.

The Lisbon treaty obliged EU member states to adopt the charter and incorporated the charter into EU law, making it legally binding and according it the same status as primary EU law. Some legal experts argue that the charter has now become the principal source of human-rights case law in the EU.

Poland and the UK have opt-outs from the charter, while the Czech Republic’s bid for an opt-out is currently being considered.